This piece originally appeared on the Federalist Society blog.
The latest legislative attempt to counter TikTok and the Chinese Communist Party is picking up steam. After easily passing the House a few weeks ago, the Protecting Americans From Foreign Adversary Controlled Applications Act is on to the Senate. Amidst the growing momentum, constitutional concerns related to the bill are growing as well, most of all regarding whether the legislation is an unconstitutional “bill of attainder.” But this objection by TikTok’s defenders is a faulty one and should not get in the way of support for this important legislation.
A bill of attainder is any legislation that seeks to punish an individual for past crimes without a trial. Like many of our Constitution’s provisions, the prohibition on a bill of attainder aimed to protect Americans from an autocratic executive and prevent our government from depriving us of our due process. As a result, the framers included a provision prohibiting federal and state bills of attainder, preventing the passage of any law punishing a specific individual and depriving that person of due process rights.
Historically, the Supreme Court has been consistent in its assessment of what constitutes a bill of attainder, focusing on two primary elements: specificity and punishment. Regarding specificity, the law must identify a specific person or group of people to be a bill of attainder. The Supreme Court has not held that the prohibition has extended to companies, but some lower federal courts have generally assumed that it does.
